Article by Professor Saptarshi Mandal on "Do Personal Laws Get their Authority from Religion or the State—Revisiting Constitutional Status" - Economic& Political Weekly

December 12, 2016 | Professor Saptarshi Mandal

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What enables an obscurantist, patriarchal body such as the All India Muslim Personal Law Board to challenge the state’s authority to intervene in Muslim Personal Law is uncertainty over the constitutional status of personal laws, that is, does the authority of personal law come from religion or the secular state. However, what eventually came to be known as “Hindu and Mahomedan laws” were creations of the colonial state following a complex process of rationalisation, rather than a simple codification of religious commands.

Shayara Bano’s constitutional challenge to the practices of triple talaq, polygamy and nikah halala, currently before the Supreme Court (SC), has raised a larger question: can the secular state be held accountable for violations caused by the operation of religious personal law? Closely related to this is the fundamental question of the constitutional status of personal laws: What is the source of authority behind personal laws in India? Is it religion or is it the secular state’s law-making power?

First, it needs to be reiterated that the practices of the Muslim family law that Bano has questioned in her petition do not exist outside the sphere of state regulation at present. Triple talaq—the husband unilaterally divorcing the wife by pronouncing talaq three times at one go—already stands invalidated by the 2002 Supreme Court judgment Shamim Ara v State of UP, which held that unilateral talaq by husband is valid only when it is pronounced for a reasonable cause and is preceded by efforts at reconciliation.

Similarly, on polygamy, judicial decisions have endorsed the Quranic injunction that a Muslim male may be allowed to marry four times only if he is able to maintain all four wives equitably. The failure to meet this high standard gives a Muslim wife the right to seek divorce and maintenance under state law. To this, a further restriction was added in 2015, when the apex Court upheld the Central Civil Service (Conduct) Rules’s prohibition of bigamy in the case of Muslim male central government employees in Khursheed Ahmad Khan v State of UP (2015).

As for Nikah Halala—the practice whereby, for a divorced couple to be able to marry each other again, the wife must marry another man and then be divorced by him—it is true that it has not been subjected to any secular principle so far. But far from being rooted solely in religion, two out of the three provisions of Muslim personal law under scrutiny in this case already exist in a framework shaped by secular considerations such as reasonableness, equity and state policy favouring monogamy as a matter of “social reform”. And yet, uncertainty persists over whether personal laws are truly “laws” that can be examined through the lens of constitutional ideals of equality, non-discrimination and dignity.

Long Shadow of a 1951 Judgement

The source of this uncertainty dates back to the 1951 decision of the Bombay High Court in State of Bombay v Narasu Appa Mali (1952). In this case, a Hindu man convicted under a Hindu bigamy prohibition law complained that the law violated his fundamental right to equality under the recently adopted Constitution, since the law prohibited Hindu men from committing bigamy, but not Muslim men.

A two-judge bench of the Bombay High Court held that personal laws could not be invalidated by courts even if they are found to be opposed to fundamental rights, since personal laws were not “laws in force” as defined by Article 13 of the Constitution. Thus, personal laws were held to be immune from constitutional challenge. The Narasu judgement was upheld by a SC bench in 1980, in Sri Krishna Singh v Mathura Ahir (1980).

In a judgement in 1996, it seemed as if the Court had implicitly overturned the Narasu rationale, since it noted that personal laws would be void if they violated fundamental rights (C Masilamani Mudaliar and Others v The Idol of Swaminathaswaminathaswami Thirukoil 1997). But the very next year, in Ahmedabad Women’s Action Group v Union of India (1997), the SC once again upheld Narasu and dismissed a petition challenging various provisions of Hindu, Muslim and Christian personal laws.

Among the high courts, the reception of Narasu has differed vastly. While some have faithfully adhered to its rationale, others have called for its reconsideration (See Assan Rawther v Ammu Umma (1971: Para 23); Re, Smt Amina v Unknown (1992); Saumya Ann Thomas v Union of India (2010); Kunhimohammed v Ayishakutty (2010)).

In Bano’s case, the All India Muslim Personal Law Board (AIMPLB) which has become a party to the case, has argued before the Court that following the Narasu judgement, the SC does not have the authority to entertain a constitutional challenge to Muslim personal law. The AIMPLB’s authority to speak for the entire Muslim community in India has been challenged in recent times by various sections of the Muslim population, most prominently by Muslim women’s organisations.[i] But what enables an obscurantist, patriarchal body such as the AIMPLB, to challenge the state’s authority to intervene in Muslim Personal Law is precisely the uncertainty over the constitutional status of personal laws, that is, does its authority come from religion or the secular state. Notwithstanding what the SC decides in Bano’s case, it must use this opportunity to revisit the faulty presumptions about personal laws upon which Narasu was based and set it right.

Personal Laws Not a Simple Codification of Religious Commands

One such presumption in Narasu was that the basis of personal laws in India is not the legislative authority of the state, but religion. Thus, one of the two judges, Justice Gajendragadkar, wrote:

Such an understanding is at odds with the evolution of personal laws in India. What eventually came to be known as “Hindu and Mahomedan laws” were creations of the colonial state following a complex process of rationalisation, rather than a simple codification of religious commands (Cohn 1996: 57-75; Kugle 2001; Bhattacharya-Panda 2008). Rachel Sturman describes the relationship between the colonial state and religious law as “a process in which the state operated through religious law, shedding the ritual significance of that law into the domain of social life while absorbing its governing functions into the state” (2012:10). Efforts to transform social life through the state is particularly visible in the legal developments of the late colonial period, where both Hindu and Muslim law were shaped by the economic and political imperatives of the male elites of each religious community using the state (Parashar 1992: 140-150; Newbigin 2009, Sturman 2012: 210-222).

State’s Role in Shaping Muslim Personal Law

In the case of Muslim law, the motives behind reform using the state’s authority were more political than economic. The Muslim Personal Law (Shariat) Application Act, 1937 which provided that the “shariat” and not customary law or Anglo-Muslim law should be applicable to the Muslim community in India, was backed by the Muslim elite’s desire to project Indian Muslims as a unified “religious” community and hence one which was politically autonomous (Newbigin 2009: 95-96; Sturman 2012: 213-218). Interestingly, this was also advocated in the name of protecting the property rights of Muslim women.

The 1937 Act made “shariat” to be the law applicable to the Muslim community, not with respect to every area where a shariat rule existed in the Quran, but only with respect to certain areas of family life specified in the act: marriage, divorce, inheritance, women’s property, gift, waqf and so forth. Matters such as inheritance of agricultural property, contracts and debt were left out of the purview of shariat in Muslim Personal Law.

The key point is that shariat acquired exclusive jurisdiction over certain matters as “Muslim Personal Law” because the state declared it to be so, and that the choice of these matters and the final shape of the 1937 Act were determined by sociopolitical rather than “religious” considerations. This was not peculiar to India. Iza Hussin’s recent book, The Politics of Islamic Law, tells the fascinating story of the making of Islamic law in colonial Egypt, Malaya and India, that underscores “Islamic law, as a product of, and venue for, politics” (2016: 9).

To take another example, consider the Dissolution of Muslim Marriage Act, 1939, which provided grounds upon which a Muslim wife could seek divorce. This act mainly codified the rules of divorce of the Hanafi school of Islamic law, elaborating on some of them and substantially modifying some others. For instance, under Hanafi law, a minor cannot repudiate his/her marriage, unless, upon attaining puberty, he/she can show that the guardian who had given him/her in marriage had acted fraudulently or show that the marriage contract was to his/her disadvantage. This is called “option at puberty”. The 1939 act modified this rule for Muslim women (but not men) and provided that a woman who had been married before the age of 15 could repudiate the same upon attaining puberty, if she did it before turning 18 and if the marriage had not been consummated. Thus, today when a Muslim woman exercises the option at puberty to repudiate her child marriage, the source of her right is not religion, but the state.

The fundamental question that we need to ask is what religious or divine character remains of a command, when it is given statutory form and interpreted by state-appointed judges sitting in state-established courts? Justice Krishna Iyer seemed to be thinking along these lines when, disagreeing with Narasu’s rationale, he noted in a 1971 Kerala High Court judgment:

Personal law so called is law by virtue of the sanction of the sovereign behind it and is, for the very reason, enforceable through Court. Not Manu or Muhammad but the Monarch for the time makes ‘Personal law’ enforceable. (Assan Rawther v Ammu Umma 1971)

Since it is the state’s legislative authority that is the basis of personal law, there is no reason why it cannot be subjected to the Constitution, just like other actions of the state.

Ongoing Legal Change

Bano’s case has evoked the liberal nationalist dream of a uniform civil code in some quarters, based on their concern for the “religious” oppression faced by Muslim women. This is curious, since (i) Shayara’s petition itself makes no such demand, and (ii) there is no direct connection between reforming certain practices in Muslim family law and a uniform family law for the entire nation. Contrary to popular belief, personal laws, including Muslim personal law, have undergone a lot of changes in the last 30 years through piecemeal amendments introduced by the legislature, but much more significantly through judicial interpretation in cases brought by people like Bano (Subramanian 2008, 2014).

In the current case, instead of chasing the grand nationalistic vision of “one nation, one law”, the Supreme Court of India would do well to contribute to that ongoing process of legal change by setting aside the shadow of the 1951 Narasu judgement and holding personal laws subject to fundamental rights. This would enable not just Muslim women like Bano, but also women in other religions to challenge the discriminatory provisions in the personal laws applicable to them.